Ruppert v. Brookyln Heights R. Co.

Citation154 N.Y. 90,47 N.E. 971
PartiesRUPPERT v. BROOKYLN HEIGHTS R. CO.
Decision Date12 October 1897
CourtNew York Court of Appeals
OPINION TEXT STARTS HERE

Appeal from supreme court, general term, Second department.

Action by Mathias Ruppert, administrator of Joseph Ruppert, deceased, against the Brooklyn Heights Railroad Company. From a judgment of the general term (34 N. Y. Supp. 1147) affirming a judgment in favor of plaintiff, defendant appeals. Reversed.

Bartlett, Martin, and Vann, JJ., dissenting.

Thomas S. Moore, for appellant.

Henry A. Monfort, for respondent.

O'BRIEN, J.

The plaintiff's son and intestate, who was about 22 years old, was killed on the 7th of August, 1893, while driving a team hitched to a loaded wagon, through Grand street, which is occupied by the tracks of the defendant's railroad. The deceased was driving the team, seated upon an elevated spring seat in the front part of the wagon, and when turning off from the railroad track one of the front wheels of the wagon came in contact with a paving stone in the street near the track, producing a jolt of the wagon, which threw the deceased to the ground, when one of the hind wheels passed over his boby, resulting in his death. The presence of this stone in the street is assumed to have been the cause of the accident, and the judgment in this case rests upon no other ground than that the defendant negligently placed or left this stone in the street. There is no question in the case with respect to the defendant's right to have its tracks in the street, nor as to the manner of operating the railroad. The simple issue of fact was whether the defendant had negligently placed or left an obstruction in the highway, which was the proximate cause of the injury. This question was submitted to the jury, and a verdict was found for the plaintiff. The only question presented by this appeal is whether there was any evidence to warrant a finding of negligence against the defendant. The plaintiff's witnesses described the stone which came in contact with the wheel of the wagon as a granite paving block of light color, about one foot long, five or six inches wide, and about the same thickness. The complaint alleges that the injury occurred in consequence of the negligence of the defendant in obstructing the highway with one of the granite paving blocks. There can be no doubt upon the evidence that the defendant was engaged in repaving the street between the rails about the time of the accident, and that the stone for that purpose was carted over Grand street, at the point where the accident happened, in the defendant's carts, by the defendant's servants. But it is equally clear upon the evidence that the defendant used no granite blocks for that purpose, but only cobblestones and Belgian paving blocks of a dark blue color. The granite blocks cost $75 per 1,000, while the Belgian blocks cost but $11 per 1,000; and the evidence in the case on the part of the defendant is quite clear, and substantially uncontradicted, that it did not use any of the more expensive stone to pave between the rails. It is also quite clear upon all the proofs that for some months before the accident the city, or private individuals, or contractors for the city, had been engaged in paving streets in the vicinity of the place where the accident occurred with granite paving blocks similar to the one which came in contact with the wagon wheel, and that such blocks had been conveyed over this street in carts. There was no direct evidence in the case as to where this particular paving block came from, or as to how it came to be in the street, or the parties who left it there. No one had seen it drop from the defendant's carts, or had otherwise traced it to the defendant.

The jury was permitted to find that the defendant was responsible for the obstruction solely upon circumstantial evidence. The circumstances were that the defendant was engaged in paving between the rails, and was obliged to convey the materials for that purpose. It was absolutely necessary in this case to prove two facts before the defendant could be adjudged liable for the result of the accident. These facts were: (1) That the defendant, or...

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    ... ... v. Erion, 223 N. Y. A.D. 526; Weller v. Consolidated ... Gas Co., 198 N.Y. 98; Ruppert v. Heights R. R ... Co., 154 N.Y. 90; Kipp v. Woolworth & Co., 150 ... A.D. 283, 163 A.D. 920; ... ...
  • Northwest States Utilities Co. v. Ashton
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    ... ... "irreconcilable with any other theory" rule ... ( Ruppert v. Brooklyn Heights R. Co., 154 N.Y. 90, 47 ... N.E. 971), the only authority cited for the rule ... ...
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    ... ... 1; Atchison, T. & S. F. R. Co. v ... Aderhold, 58 Kan. 293, 49 P. 83; Ruppert v. Brooklyn ... Heights R. Co., 154 N.Y. 90, 47 N.E. 971; Laidlaw v ... Sage, 158 N.Y. 73, 52 ... ...
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